This article was contributed by Luis Izzo.
As a director of Australian Business Lawyers & Advisors, I am regularly called to advise on disciplinary action arising from workplace investigations. As the disciplinary process unfolds, what often becomes apparent is that flaws arising during the investigation process often undermine the employer’s decision-making process. This tends to increase exposure to unfair dismissal or breach of contract claims. Here are five tips for ensuring your workplace investigation stays on track and beyond reproach.
Set the scope
Regardless of whether you are investigating a matter internally or engaging an external investigator, it is important to set the scope of what is being investigated at the outset. Sure, developments might arise during the investigation process that require the scope to be expanded or narrowed. However, if you don’t set a scope or framework for the investigation at all, the following two consequences are likely to arise.
- Firstly, you might find that the investigation lacks direction and unnecessarily traverses matters that are irrelevant to the allegations being investigated.
- Alternatively, certain parties may become aggrieved if their particular issues are not addressed. A defined scope helps to provide boundaries on the behaviour subject to scrutiny and helps ensure that other unrelated issues (including, for example, legitimate performance management and operational differences of opinion) do not become entangled in the investigation.
Don’t run away from the ‘he said, she said’ scenario
Investigations will often involve situations in which two witnesses have opposite recollections of the same incident.
In these cases, many employers will automatically conclude that they cannot reach any finding regarding what took place – given the conflicting evidence from the only available witnesses.
Employers need to remember that the standard of proof that needs to be applied in these cases is ‘the balance of probabilities’. That is, is it more likely than not that the alleged conduct took place?
While the existence of a factual disagreement between the two direct witnesses often muddies the waters, there could be a myriad of other circumstantial evidence that might assist an employer in determining what actually took place. For instance, a contemporaneous complaint or file note, contemporaneous email correspondence and a regular pattern of behaviour by a particular employee are all types of evidence that will form part of the overall framework of facts that are relevant to determining whether certain conduct has taken place.
It could well be the case that, having considered all of this evidence, it is still impossible to make a finding either way. That is inevitable in some cases. However, don’t simply give up at the first hurdle without trying to explore whether a finding can be made.
Don’t declare war on the support person
It is now well understood by most HR practitioners that support persons are there to emotionally support the person involved in the investigation and do not have the right to act as an employee’s advocate.
However, we find that some HR practitioners tend to take an unnecessarily hostile approach to support persons, fervently reminding them of their limited role at any opportunity and refusing any requests for breaks or to clarify questions. In our experience, taking an amicable approach to the investigation process is more likely to achieve a constructive outcome. Unless the support person starts misbehaving or disrupting the investigation process, an accommodation for a five-minute break or to clarify the meaning of a question is unlikely to prejudice the employer’s position and will lead to a more harmonious investigation process.
Of course, when asking questions of employees, it is important that you do obtain the employee’s answer directly from them, as opposed to the support person. This is particularly important in dishonesty cases to ensure that the employee can be accountable for what is said in the investigation meeting.
You can never ask enough questions in an investigation. Try to ask as many questions as possible. When did the events occur? Where? Why? Who witnessed the events? How does the witness know about the matters they are describing?
A common (and justifiable) complaint by many respondents to investigations is that they are not provided with sufficient detail of the allegations against them. The more thorough your questioning, the more specific the allegation and findings and the more defensible the investigation process becomes.
Clarify who can see witness statements, and how much information is provided
Witnesses often request that their evidence be kept confidential when disclosing information about fellow employees. On the other hand, respondents often complain when they can’t see the witness statements made against them, alleging that they do not have a fair opportunity to respond to the allegations.
How does the employer balance these competing issues? The short answer is that a respondent needs to be provided with sufficient detail of the allegations against them in order to be given a fair opportunity to respond. However, this doesn’t necessarily mean they need to see witness statements. Rather, the respondent will often only require specific detail about what it is alleged they have done.
In rare cases, though – particularly where witness motivations for giving evidence could be called into question – the only way to give the respondent a fair opportunity to respond could be to disclose the effect of evidence from relevant witnesses.
Workplace investigations can be complex matters, and only a few key points have been covered in this article. ABLA runs regular webinars and training courses on this subject and can tailor the training for your organisation. Call 1300 565 846 or visit ablawyers.com.au to book in a comprehensive training program for your staff.
Luis Izzo is a director at Australian Business Lawyers & Advisors (ABLA). Serving business and only business, this legal and advisory firm is trusted by the Australian Chamber of Commerce and Industry and is the leading voice for industry in the Fair Work Commission. Contact Luis on 1300 565 846 or firstname.lastname@example.org if you have any questions about workplace investigations.