- Preparation and information collection
- Interviewing the relevant parties
- Making a finding and report
- Resolution Activities
Communication and feedback to relevant parties should occur throughout the process. An overview of each step of a Workplace Investigation Process is provided below.
This article should not be relied on as a complete step-by-step guide on how to conduct workplace investigations. A workplace investigation should be conducted by a suitably qualified individual or organisation.
Things that need to be considered when planning for aworkplace investigation include:
- Whether you are the right person to investigate this matter, i.e. is there a conflict of interest due to a relationship with either of the parties / skill / availability;
- Identify and categorise the nature of the complaint;
- Identify the parties to the matter and their location and availability – Complainant(s) / Respondent(s) / Witnesses / Other interested parties such as Unions etc; and
- Obtain any relevant background information available, including:
- Any relevant investigation protocols;
- Complaint document(s);
- Relationships (organisational structure);
- Relevant policies and procedures and codes of conduct;
- Enabling legislation;
- Training records;
- Position descriptions;
- Employment contracts. Establish if covered by an Award or Workplace Agreement and any relevant term(s) or obligations;
- Past performance reviews / Employment records / CV’s;
- How previous incidents have been managed, relevant operational processes and procedures;
- Previous investigations / complaints / observed patterns of behaviour; and
- Environmental factors such as industrial climate, structural change operational pressures, threat of job loss etc.;
- Determine an appropriate location for interviews and administrative matters such as who organises the interview times etc. Take into consideration geographical factors for interviews such as work locations and travelling times, and availability of parties if involved in shift work, weekend work or currently on leave etc;
- Consider representation matters i.e. union availability etc.;
- Be realistic in scheduling appointment times. Allow at least 2-3 hours with the complainant and a similar time with the respondent and 1 hour for each witness;
- Who will be interviewed, in what order?
- Prepare an interview question guide based on the allegations;
- Review the plan after initial interviews with the complainant(s) and the respondent(s);
- Allow for a second interview with both the complainant and the respondent to provide them feedback from the initial round of interviews and particularly around any conflict in evidence or statements that you do not feel have been supported in the investigation thus far.
- Introduce yourself and explain your role clearly;
- Check that representation / support has been offered or if they have any special needs such as an interpreter and / or union representation. Explain role of any support person (e.g. to support not speak for them);
- Ensure the complainant understands the process and is aware of the relevant policies / options open to them in having their complaint handled;
- Talk about the processes:
- Confidentiality – including the need to protect the integrity of the investigation process;
- Communication of information and material with the respondent(s);
- Note taking, documentation, witness statements and / or the giving of permission to record the conversation; and
- Likely timing of the investigation moving forward.
- Manage emotions and apply sensitivity – remember that the person may be emotional and distressed. Suggest breaks if the interviewee becomes upset or distressed;
- Obtain as much specific detail (evidence) as possible:
- Description of behaviour – what was said/done and how often (what / who / when / where);
- List of potential witnesses, people the complainant may have spoken to about the complaint, or other people who may have experienced similar behaviour from the respondent;
- Ask how they feel, what impact has the behaviour had on them (immediate and subsequent) and what they see as an appropriate outcome; and
- Filter details being provided to see if it is going to be material to your findings (probative value), check matters raised for currency, courts frequently do not allow matters that may have occurred more than 12 months ago to be used as it is difficult to revive memory about such events after that space of time.
- Check appropriateness of existing work arrangements;
- Explore the impact of environmental matters such as operational matters, organisational culture, training etc;
- Check any ongoing support required e.g. Employee Assistance Program (EAP);
- Ask the interviewee if they have any further questions;
- Explain timings and when you will get back to the interviewee; and
- Write up interview summary or statement, ask complainant/ respondent/ witness to review and sign
- Consistency, reliability and credibility of each party, etc how strong is the evidence?;
- Balance of probabilities and reasonable person test – the more serious the implication of a finding the stronger the Balance of Probabilities test needs to be;
- Impact on complainant, severity and frequency of behaviour;
- Whether the respondent intended to harass, discriminate or bully is largely immaterial in determining a finding;
- Wishes of the complainant;
- Policy contravention;
- The impact on the organisation in terms of its exposure to vicarious liability claims and/or damage to its reputation; and
- Completing an Evidence Matrix may be useful in summarising information
For each element of the complaint make a finding on the facts:
- Behaviour found to have occurred
- Behaviour found NOT to have occurred
Then Categorise as:
- Potentially unlawful
- Breach of policy/code
- Reasonable in all the circumstances
Don’t leave any material matters unaddressed. A finding might be that there is insufficient evidence to support a finding of inappropriate behaviour or that the case against the respondent has not been established on the balance of probabilities. It is not fair to the respondent(s) to leave a matter unresolved.
Take one last look to see if the various elements of the complaint in totality establish a “pattern” of unacceptable behaviour.
Ensure a connection between the evidence and your findings and any subsequent conclusions so that your rationale is evident.
The Workplace Investigation Report
Evidence on how the organisation dealt with the complaint may be submitted in subsequent legal proceedings. For example, if a complaint is lodged with the Human Rights and Equal Opportunity Commission or another anti-discrimination agency, records of internal action will be useful in establishing whether ‘reasonable steps’ were taken to deal with the discrimination / harassment and may assist in discharging the organisation’s liability.
Finalising the Investigation Report
Before finalising the investigation report and making findings (and if requested, recommendations), consider the following:
- Have all issues in the Terms of Reference been addressed?
- Have all respondents against whom an adverse finding might be made been advised of each relevant allegation and been given a chance to provide information in relation to the allegation?
- Have all relevant witnesses been interviewed?
- Have all witnesses interviewed had the opportunity to review and make any necessary corrections to their statements.
- Have all witnesses interviewed signed their statements (typed up versions of the statements are preferable, however keep the original notes).
- Have copies of all relevant evidence (e.g. e-mails, photos, etc) which have come to light in the course of the investigation been obtained?
- Where necessary, has any relevant evidence been put to witnesses?
- If the investigation is a workplace health and safety investigation, has expert opinion been obtained if this is necessary?
- Have you applied the balance of probability test when determining factual conclusions, i.e. an investigator should not find a fact to be established unless it is ‘more probable than not’ that it occurred. (An Evidence Matrix Form is a useful tool to assist Investigators in this regard).
Every situation is different so the suitability of resolution activities will also vary. Examples of potential resolution actions include:
- Conciliation / mediation;
- Formal apology;
- Communication of policies to workforce;
- Re-crediting any leave taken as a result of the discrimination or harassment;
- Disciplinary action – e.g. warning, dismissal, transfer, demotion;
- Dismissal of the complaint if it is found to have no substance;
- Increased supervision / monitoring;
- Reimbursing costs (e.g. medical, counselling);
- Disciplinary action against the complainant if complaint was vexatious or malicious; and
- Applying an appeals process if parties are not satisfied with the investigation result.
Keep in mind that whilst an investigation may be carried out that meets all process requirements, it is the perceptions of the individuals involved in a complaint that will influence their ability to accept the outcome.
A communication plan should be carefully considered and carried out at all steps of the investigation process.
More information about iHR Australia’s Workplace Investigations servicesand Workplace Investigations and Mediations Training.