How to conduct a (legally defensible) workplace investigation

by Human Capital25 Mar 2014
When an employee levies a complaint against another staff member or an organisational policy, it’s up to HR to investigate whether their objection stacks up and cultivate a solution. Or is it?
The results and process of workplace investigations will be very important if and when the case goes to Court, so HR professionals clearly need to get it right from the outset.
However, this may mean that the best thing to is handball the job of investigating the complaint to someone else, according to workplace lawyer Joydeep Hor.
“The most critical decision you need to make is ‘who’ will investigate,” said Joydeep Hor, founder and managing principal of People + Culture Strategies.
“In many cases, it’s actually better for HR not to investigate, because they have a such a big role to play in the decision-making process afterward. The more sensitive and thorny issues may need to be outsourced – especially if it involves HR interviewing a peer.”
The process of conducting a thorough workplace investigation starts with understanding the scope of the complaint, from the people and possible witnesses involved, to the potential consequences of the complaint.
“There’s the need for full procedural fairness and natural justice, and you have to give the people involved the opportunity to respond to anything that will be material,” Hor said.
“You also need to decide how you will make and document your findings, and who will be the decision maker. It’s very complex and we see a lot of investigations that are done very shabbily, with not enough professionalism or care applied.”
Indeed, the fallout of a poorly investigated complaint can be costly, as was the case with sales assistant Wendy Swan, who was awarded $600,000 following several years of unremedied workplace bullying.
Externalising the investigation to an independent third party is one viable option, as it “allows the optics of impartiality and neutrality, and allows a process to unfold that can be better defended in Court”, Hor added.
“If you decide to conduct the investigation internally then at the very least, HR should invite the employee to have someone neutral to support them during the investigation, so there is a witness to the proceedings and their version of the events can be backed up,” he advised.

Joydeep Hor will be discussing "Workplace Bullying: Navigating the New Landscape" at our 2014 HR Summit, held in Sydney on April 1-2. For more information, click here.


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