What are the key elements of a workplace investigation?

One Minute Summary

Workplace investigations are an essential part of how employers should respond to workplace incidents.
Incidents where an investigation is recommended include policy breaches, serious safety breaches, sexual harassment, victimisation, bullying, fighting, theft, as well as difficult attitude and performance issues.
Any such investigation should be comprehensive and carried out in a professional and confidential manner.
The investigation should not assume the accused is guilty but should be a fact-finding mission to determine what happened.
There are a number of benefits of carrying out a comprehensive investigation including the employer being able to defend themselves in future legal proceedings which may not become evident for some months.

It is becoming increasingly evident that workplace investigations are an essential and necessary part of resolving difficult workplace issues.

Understanding the facts in detail will allow you to

determine the validity of the incident
support the complainant
deal with the accused/perpetrator in an appropriate manner
respond to any legal action which may not happen for some months; and
decide whether the incident requires workplace education to be initiated.

Legal action could include the complainant lodging a formal complaint to the Australian Human Rights and Equal Opportunity Commission (which may progress to the Federal Court) and potential unfair dismissal proceedings if the accused/perpetrator is terminated.

Reading through Fair Work Commission decisions a comprehensive investigation report is highly regarded evidence. On the contrary a poorly conducted investigation usually ends up hurting an employer in any such proceedings.

Employers need to be aware if their own disciplinary procedures require an investigation. In last week’s ER Update the senior HR representatives of the employer ignored their own policy/procedure and failed to conduct an investigation. This was strong negative mark against them in Fair Work Commission proceedings.

The following briefly covers some of the more important questions employers should consider when conducting a workplace investigation.

What types of incidents require an investigation?

Typical incidents that may require an investigation could include policy breaches, safety breaches, sexual harassment, victimisation, bullying, fighting, theft as well as difficult attitude and performance issues. The purpose of an investigation is to establish the facts and an appropriate response.

Are line managers aware when an investigation is necessary?

Where an incident occurs at the workplace it is important to act quickly while the incident, and activities leading up to the incident, are fresh in people’s minds. It can take some time before an employer becomes aware of a sexual harassment incident often only when they receive the official complaint from the Australian Human Rights Commission. Employers will be at a severe disadvantage if they do not have the facts of what occurred at the time of the incident.

Has the employee prepared a statement?

Where an incident occurs the employee (the complainant) should be asked to write down what occurred. They can do this themselves or talk to someone who can write down the facts as described. This should include what happened, who was involved, what was said, time and location and whether they remember anyone else nearby who were not directly involved but may have witnessed the incident.

Has the complainant been informed to keep the matter confidential while an investigation takes place?

At this stage there is a complaint and an accused person. We cannot assume guilt until all the facts have been investigated and established. Those undertaking an investigation must keep an open mind as facts may have been distorted or the accused has a reasonable explanation. This is why an investigation must be thorough.

Does the complainant require counselling or time off?

It is best to assume that a complainant requires counselling if they appear distressed in any manner. Even if they don’t immediately appear distressed it is best to inform them that counselling is available. This can occur through an EAP service or can often be arranged through a local counselling service or psychologist. Another option is to allow them paid time off.

Has the employee’s line manager been consulted as to additional background information?

Before an incident occurs between two people there can be signs that their day-to-day workplace interactions are not normal. The Supervisor may be able to provide useful background information. It may be an idea to ask the Supervisor about their general workplace behaviours.

Who should be interviewed in a full investigation?

The first person to interview should be the complainant. This interview will allow you to determine who was directly involved and who witnessed any incident. Those involved should then be interviewed next. Finally, discussions should take place with any ‘bystander’ witnesses.

What should I tell other persons as to why they are being interviewed?

Those directly involved should be told they may have been involved in an incident on time /place on a particular date. You are seeking information from them as to what happened. In relation to witnesses who were not involved they need to be informed that an incident took place, that they were not involved but may have been nearby and that you wish to discuss anything they may witnessed or overheard.

How should I approach the interview itself?

We cannot assume anyone is guilty based solely on that person’s account of the incident. Therefore, until a conclusion is reached based on the fact’s interviews should take place as a fact-finding mission. Example - “I believe you may have been involved in an incident with John on Friday morning – can you tell us any more about this?”

What other information should be considered as part of any investigation?

The interviews with the complainant and others directly involved will provide leads as to what other information may be important to obtain. This can include checking emails, training records, video evidence, timesheets or other documentation. This information may fill in some gaps and provide a logical sequence of events leading up to any incident.

What should I include in an investigation report?

The investigation report should include the initial complainant details and the accused’s response, what witnesses have stated, discrepancies in the evidence provided, other evidence such as emails etc and analysis of the facts. It does not include a decision or recommended outcomes for individuals. This can be discussed with senior management once they have considered the contents of the report.

After an incident employers should ask themselves the question – do we need to undertake an investigation? If in doubt the answer is probably ‘yes’.

Employers requiring assistance in conducting independent workplace investigations should contact Hunter Employee Relations.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

Guiding senior managers through complex employee relations issues

Sign up here to receive Hunter Employee Relations Update directly to your email inbox

Want to know more about our client services?