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Every workplace experiences some form of employee dispute and misconduct. Allegations of harassment, discrimination, bullying and fraud create particular challenges for management and the organisation at large.
Failing to conduct a procedurally fair workplace investigation may result in employees placed in harm, a risk of financial liability, increased WorkCover claims, employee absenteeism, and render the business unable to defend a legal challenge.
If you are a HR practitioner conducting your first workplace investigation, or you are the leader of an organisation trying to determine whether a workplace investigation is required or warranted, then this is the guide for you.
In certain situations a workplace investigation is the only solution to make findings of fact when allegations are raised through a workplace complaint. It is the responsibility of an organisation to hold individuals accountable for their actions to the required, appropriate standard.
When a workplace investigation is required, it is recommended that you engage an independent HR consultant or workplace investigator. You will be provided with impartial guidance and recommendations whilst being made aware of a number of considerations including the risk profile, compliance liabilities, broader issues and employee wellbeing.
HumanX is a HR agency, with a highly experienced team guiding organisations through workplace issues and challenges that may require workplace investigations to make defensible and informed decisions. Get in touch for more information.
What is a Workplace Investigation?
A workplace investigation is an independent, objective and structured process undertaken to make findings of fact regarding allegations without any perceived bias.
When employees raise concerns regarding the behaviour of other employees or about conduct contrary to workplace policies, a workplace investigation is the process adopted to determine whether the allegations underpinning the complaints or concerns are substantiated. Investigators collect information and analyse evidence in order to make findings of fact. The required standard of proof is balance of probabilities.
Which Situations or Scenarios Warrant a Workplace Investigation?
A workplace investigation is recommended in instances where an allegation of employee misconduct is raised. This may involve the alleged breach of a policy or procedure, contractual term or workplace law. This includes:
- Bullying - Repeated, unreasonable behaviour towards a worker or a group of workers which creates a risk to health and safety. For example, an allegation of unreasonable criticism or belittling of someone's work or exclusion from workplace discussions or events.
- Discrimination - Treating a person less favourably based on an unlawful ground of discrimination, including gender, race, religion, age, sexual orientation and disability.
- Sexual Harassment - Unwanted or unwelcome behaviour of a sexual nature causing someone to feel humiliated, intimidated or offended.
- Workplace Safety Violations or Incidents - Situations of serious accident or injury, or a serious near miss.
- Criminal offences - This may include theft, fraud, embezzlement and physical violence.
Conduct of this kind will have a detrimental impact on the workplace and affect the organisation’s ability to comply with workplace laws, create a safe environment for its employees and maintain its reputation as an employer of choice.
Who Is Involved In a Workplace Investigation?
Complainant - This is the individual who raised the grievance. The investigator will meet with the complainant to seek further information about the allegation(s), and to request any supporting documentation or evidence they have available.
Respondent - This is the individual who the grievance is made against and who allegedly committed the misconduct. The investigator will provide them with the allegations and they will be given the opportunity to respond and submit any supporting documentation or evidence.
Witness - A witness is anyone who may be able to provide information about the alleged misconduct. Witnesses may have observed the alleged misconduct or be able to provide information about events leading up to or following on from an alleged incident.
Support person - An individual whose role is to support another individual during an investigation process. This may be a friend or family member of the individual or a union representative, for example.
Investigator - This is an experienced and impartial individual who conducts the workplace investigation by interviewing all relevant parties, reviewing all material and making findings of fact based on the evidence provided. The investigator may be a member of an internal Human Resources team, or an external party. In instances where the matter is of a serious nature and / or impartiality is not ensured then it is prudent to outsource the workplace investigation to an experienced firm.
What Is the Role of HR In Conducting a Workplace Investigation?
In most instances, employees raise grievances and complaints to their managers and / or to the HR team. Sometimes they may go directly to HR, or the managers may forward the complaint to HR to seek assistance in dealing with the matter.
Depending on internal processes and policies, HR may be required to take carriage of the matter or to provide advice and assistance to the business. If it is determined that a workplace investigation is required, the HR team will need to consider whether they have the time, capability and resources to undertake the workplace investigation. More importantly, HR will need to grapple with eliminating actual or perceived bias in the investigation process, ensure procedural fairness and develop a report for management that will hold up to a challenge down the track.
Usually when conducting a workplace investigation, time is of the essence. Respondent(s) may be stood down, complainant(s) and witnesses may be anxiously awaiting the results of the investigation and management is eagerly awaiting an outcome so that they can move on and continue operations.
This means that the HR practitioner has to drop what they are doing, quickly issue notices and letters, agree on the scope of the workplace investigation with management, develop allegations, arrange and hold interviews, liaise with support persons, provide employee assistance, undertake statements, gather evidence, analyse and draw inferences from data gathered and interview recordings and produce a clear and concise report that addresses each allegation raised with applicable findings.
This doesn't include the experience required to understand and adequately consider principles such as causation, proximity, admissibility and probative value of evidence, amongst other things.
If the workplace investigation is outsourced to an experienced provider like HumanX, then the role of HR will be to brief and assist the investigator in obtaining information and contacting stakeholders. The responsibility will sit with the provider to undertake a fair and independent workplace investigation in a timely and cost-effective manner.
6 Step Workplace Investigation Process
After a complaint is received it should be acknowledged in a timely manner. It is recommended that the complainant submit their grievance in writing. Following this, the individual receiving the complaint may need to meet with the complainant to seek additional details. The complainant should be offered the ability to have a support person present.
At this stage, the relevant individual or department must determine whether to proceed with a workplace investigation. Remember that if you do not decide to proceed with a workplace investigation, the grounds on which you made this decision may be challenged at a later date.
Smaller conflicts or disputes may be better addressed with a mediator or without a full investigation procedure. Serious allegations should be investigated in accordance with the principles of procedural fairness and internal policy and procedure. At this stage, the respondent may be temporarily stood down.
This is an imperative stage for the business. Most managers are not experienced at investigating workplace complaints. Even if they are experienced, they may not have the time and resources to handle workplace complaints in addition to their existing workload.
In this instance, they should contact workplace investigators, to step in and undertake an independent, cost-effective investigation.
2. Preparation & Notification
After deciding to proceed with a workplace investigation, you should take the time to plan your approach and document what you are seeking to achieve. You should consider the following:
- The scope of the workplace investigation
- Identified parties and order of notification
- Internal HR policies / procedures requirement
- Who is going to conduct the investigation
- The manner in which interviews are to be held and statements required
- Who is going to conduct or be involved in interviews
You should use the formal complaint to inform the decisions made at this stage. It is highly recommended that you document and justify the reasoning for these decisions and map this out as part of procedural fairness.
The respondent should receive a letter notifying them of the workplace investigation and reminding them of confidentiality requirements.
3. Collect Evidence
This is a primary step of conducting a workplace investigation, wherein you will review the complaint, conduct interviews with relevant witnesses and collect evidence. Evidence may include written communications, internal documents, or CCTV footage, amongst other things.
4. Develop Allegations
At this stage, allegations should be drafted and sent to the respondent. The allegations should be clear and concise and address the who, what, where and how of each matter. The respondent should be provided the opportunity to respond to the allegations in writing.
They should be notified of an interview and given suitable time to prepare their responses and find a support person.
5. Make a Determination
After all relevant parties have been interviewed and all details, documents and evidence have been collated, a decision must be made as to whether the allegations have been substantiated and reasoning for this decision documented. Findings should be shared with the complainant and respondent.
If a disciplinary action is to follow, only the party subject to the disciplinary action should be notified of this decision.
HumanX HR will provide a thorough report at the conclusion of an investigation that outlines the process, the evidence and the outcomes. As HR-first and experience-led consultants, if requested we are able to provide post-workplace investigation recommendations that may prevent similar occurrences in the future. This could be related to developing workplace culture, performance management strategy, leadership training, or recommendations to review HR policies.
If the ultimate decision results in termination, HumanX HR consultants are also able to advise on procedure and facilitate those next steps.
6. Manage the Outcomes of the Investigation
Communication is a key component of any successful organisation and the same goes for when you are conducting a workplace investigation. There may be long term changes or repercussions as a result of the investigation. Organisations have a duty of care to support employees through these times and to ensure their wellbeing and safety moving forward.
Moreover, the results of an investigation could lead to some negative dissent. A proper strategy and effective communication can help you manage this stage.
How Long Should a Workplace Investigation Take?
Whilst it is important to undertake the workplace investigation as efficiently as possible, there is no real way to determine how long the process will actually take from brief to report. There are many factors that influence the timeline.
This may include availability of stakeholders, types of evidence gathered and relied on, as well as issues and matters that could arise during the workplace investigation. For instance, witnesses may provide new material information that wasn’t available at the outset which the investigator may be required to address.
Things to Consider Before Conducting a Workplace Investigation
- Whether a workplace investigation is appropriate in the circumstances - is this a simple matter that requires an informal process or are there other appropriate actions to be taken first such as mediation
- The cost of a mishandled workplace investigation or an unsupported decision
- Your communication strategy and execution - both with the parties to the investigation and at the conclusion of the workplace investigation
- Is there a wider problem in the workplace? How can you use this investigation to uncover information and address the root cause of the issues at hand
- How are the potential outcomes going to impact the working environment and cultural dynamic?
- How can you strengthen the business from this experience?
Mitigating Risks Through a Workplace Investigation
Where an individual has been employed for more than 6 months by an organisation with 15 employees or more (or has been employed for more than 12 months by an organisation with 14 employees or less), termination is accompanied by the risk of unfair dismissal. These employees can apply to the Fair Work Commission to challenge their termination.
A workplace investigation which results in a termination that has been conducted in accordance with workplace legislation and principles of procedural fairness, will assist an employer in defending an unfair dismissal claim. Under the Fair Work Act, the following are some of the considerations taken into account when determining whether a dismissal was harsh, unjust and unreasonable:
- Whether there was a valid reason for dismissal - A properly conducted investigation will determine whether there is a valid reason for dismissal based on a consideration of all the evidence and subsequent findings of fact.
- Whether the person was given an opportunity to respond to any reason - A properly conducted investigation will allow a respondent the opportunity to respond to any allegations and provide supporting documentation and evidence.
It is integral that organisations mitigate the risk of an unfair dismissal claim. Unfair dismissal claims can have varied results. In 2022, the median cost of a settlement was between six and eight weeks pay but can stretch far beyond this.
Failure to conduct a workplace investigation in line with workplace legislation and principles of procedural fairness is likely to have an impact on the environment and culture in the workplace - this can play a major role on retention, employee engagement, productivity and the organisation's ability to move forward.
The Impact of a Workplace Investigation On the Wider Team
A workplace investigation must be undertaken with as much care as possible to maintain confidentiality and protect the privacy of those involved. However, if it was a public incident that took place, your employees may have expectations regarding how the situation was handled.
In situations involving bullying (particularly due to discrimination or racism) or harassment, employees may feel vulnerable. It is the organisation’s duty to support the impacted individual(s) and it is imperative that the business demonstrates that action is being taken to prevent similar incidents occurring.
Organisations should be on alert for any behaviour amounting to victimisation. Victimisation involves retaliation or unfair treatment towards an individual who has lodged a complaint or assisted in a workplace investigation or grievance procedure.
When Does a Dispute or Conflict Escalate to a Workplace Investigation?
Typically, a workplace dispute or conflict founded in a personality clash is unlikely to result in a workplace investigation, unless it escalates further to bullying or harassment.
A workplace dispute tends to call for a workplace mediator rather than an investigation. Their role is to facilitate honest conversations and work towards a solution. If a productive outcome cannot be achieved through mediation, a HR specialist mediator will be able to advise on next steps.
HumanX HR are professional, independent workplace investigators with all the necessary experience to see your business through this period. Speak to our knowledgeable team for more information, today.
The information contained in this article is for general guidance only. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply in all circumstances or in particular situations. No person should act or refrain from acting on the basis of such information.