Despite this, if done poorly, a workplace investigation can turn into a fully-fledged fiasco more likely to start a fire than put one out.
For employment lawyers, who in dealing with Fair Work Commission
claims are routinely required to conduct an autopsy of workplace investigations gone wrong, a number of elements stand out as being critical in preventing legal risk and personal stress.
Who is in charge here?
The choice of an appropriate investigator will have a strong bearing on the success or otherwise of an investigation.
Capability is key. While internal investigations are ordinarily (initially at least) less expensive than external ones, if an enterprise does not have sufficient capability to conduct an appropriate and procedurally fair investigation, it should not attempt to do so.
Bringing (and being seen to bring) an unbiased mind to the investigation is also fundamental. If the nature of the investigation involves or compromises potential ‘in-house’ investigators, a third party investigator should be sourced.
If an external investigator is sought, the status and skill set of that advisor will also be important. If the nature of the investigation is commercially sensitive, it is prudent that any investigation report be protected by legal professional privilege. For this to occur, the investigation should be facilitated by a lawyer. If, on the other hand, an investigation is conducted with an intent to mediate a particularly sensitive issue, an investigator with training in counselling or psychology may be worth considering.
In selecting an investigator, the seriousness of the issue, the expectations of employees and the possible consequences of the investigation should always be considered.
Why are we doing this?
While workplace investigations certainly appeal to the ‘process-orientated’, HR practitioners should be clear that the fundamental purpose of conducting a workplace investigation is to establish ‘what happened’.
Having established ‘what happened’, a business can make defensible decisions on the basis of those facts. The investigation (and importantly a record of it) can then justify the decisions of the business, should those decisions be subject to later scrutiny (say by the Fair Work Commission
An obvious example of this is that, prior to dismissing an employee for misconduct, an investigation is conducted to establish the misconduct occurred.
In that sense, it is not the role of an investigator to robotically and arbitrarily follow an investigation procedure at the expense of establishing a defensible factual position. While complying with any relevant procedure is critical, an investigation which gives rise to an arbitrary or artificial result is likely to be called into question should a claim arise. Substantive, as well as procedural fairness, is the aim of the exercise.
Fundamentally, in order to be afforded procedural fairness, the subject of an investigation must be provided with all allegations against him or her.
This step, which in some cases may be a matter of considerable awkwardness, is the key step in not only allowing an employee to defend himself/herself against an allegation but also in determining whether an incident occurred.
If an allegation has not been put to an employee, it is unlikely it can be relied upon to take action against that employee.
I did not want to hear that....
To do an investigation well, investigators should be extremely clear on the scope of their investigation. As a matter of practice, other matters routinely arise during the course of an investigation in mitigation (i.e. counter-allegations of bullying or inappropriate conduct).
Should matters worthy of investigation arise, it will be incumbent on a business to investigate those matters, whether as part of the primary investigation or as a secondary investigation.
Such a development may extend the time, costs and complexity of the investigation, however a business must resist the temptation to ‘cut corners’. If a relevant matter is not investigated, the integrity of the investigation may be compromised and the decisions based on the findings of the investigation may no longer be defensible.
The paper trail
Finally, if the purpose of conducting an investigation is to find out ‘the facts’ in a manner that will stand up to later scrutiny, it is fundamental things be written down.
While the approach will vary from case to case, contemporaneous file notes and meeting records, written correspondence issued to the participants of the investigation (most critically the subject of the investigation) and investigation reports will ensure that the effort expended in doing the investigation will result in something tangible which can be relied upon later.
Further, the initial written record of a process is usually highly persuasive in establishing ‘the narrative’ of a process. Putting it on paper now will save an investigator a great deal of pain later, potentially in the witness box.
By Julian Arndt, Senior Associate, Workplace Relations, at Australian Business Lawyers and Advisors.
Contact ABLA on 1300 565 846 or firstname.lastname@example.org if you have any questions raised in this article.
P: 02 9458 7565
Whether it's establishing inappropriate use of the colour copier, or misconduct relating to the use of cocaine, workplace investigations should be the bread and butter of a HR practitioner’s skill set.