Creating an airtight investigation process

by Cameron Edmond22 Oct 2013

HC reported last week on a case heard by the FWC in which two employees were fired for assaulting their supervisor – the investigation was not carried out as well as it should have been, and as such the organisation faced some costs.

The same case was brought up by Erin Kidd, senior associate at Holding Redlich, during a seminar late last week, in which she discussed the necessities of crafting strong and thorough policies for all investigations.

“We can all realise how important workplace investigations are to get right and how often we need to do them, but I think there is an increasing number of claims that require investigation or to ensure that the business complies with regulatory conduct,” she stated. “When employees perceive an investigation as unjust or unfair, other staff can develop a low view in management.”

Kidd highlighted that organisations should evaluate each case independently against both internal and external policies and regulations to determine what cases will need to be investigated.

From here, establishing those who will be involved in the investigation is important, such as investigators and decision makers. Investigators and decision makers may be separate people, or they may be one in the same – Kidd recommends that they be as impartial as possible, and suggests some organisations may consider bringing in an investigator from outside the organisation to calm any concerns of bias.

HR should remember to ensure confidentiality to a reasonable degree, especially if it concerns sensitive matters.

Organisations must also be prepared for those in the organisation who are usually chosen to investigate or make the decision to be the ones being complained about. If not prepared, this can prove trying for HR when attempting to mount the investigation. This highlights one benefits of external investigators.

Witnesses may also wish to have a support person present. Kidd advised that while legislation does not grant employees the right to one, HR should generally allow them to have one if they make a request. Some may wish to bring in co-workers or lawyers, and HR must prepare for that – Kidd stressed that the role of a support person should be just that, and if one (such as in the case of a lawyer) begins answering questions or otherwise interfering with the investigation, HR should advise them to stop and even remove them from the interview if necessary.

Interviews should also be confidential – they should be in discreet locations in the office to avoid other co-workers from seeing them, and should not involve individuals involved in the case other than the interviewee. HR may consider renting separate office space to conduct the interviews.

“I find leaving people in the dark does not assist matters, and that is when people get dissatisfied with the process. If you are going through the process and suddenly a participant is off sick, you need to inform the people in the process why there is a delay,” Kidd added.

Another area of importance highlighted by Kidd is if any changes to the workplace need to be taken during the investigation. Those involved may need to be moved so they are not in close proximity of each other during the investigation (especially true in bullying circumstances) to avoid hostility or other complications. How HR handles this will depend heavily on the nature of the case.

 

Key HR takeaways

Ensuring a strong and airtight investigation process is an arduous and multi-faceted undertaking, but well worth it when one considers the possible stress for employees and legal fallout if an investigation isn’t carried out appropriately. Kidd ended the seminar by recapping areas organisations must turn their attention to:

  • Review your relevant policies and processes.
     
  • Treat employees consistently and fairly.
     
  • Ensure regular contact/correspondence.
     
  • Take into account relevant evidence.
     
  • Ensure a consistent outcome.
     
  • Action should reflect seriousness.

Interested in learning more about Employment Law? Register for our HR Master Class now!

COMMENTS

  • by RivercityIR 22/10/2013 2:32:21 PM

    Investigators should NEVER be decision makers. Thats when the investigation falls over and becomes nothing more than a justification for whatever disciplinary action follows.

    Removing a support person from an interview will have an affect on the view by FWC on procedural fairness. HR must CONTROL the interview but not diminish the employees rights. HR must OFFER a support person not wait for the employee to ask for one.

    Has this lawyer ever done an investigation before???!!!!

Most Read