Whether an employer operates in the public or private sector, workplace investigations are a vital part of managing workforce conduct.
Emily Shoemark, Senior Associate with Snedden Hall & Gallop Lawyers details the 8 key steps that an employer should undertake in a workplace investigation.
When should a workplace investigation arise?
Workplace investigations should occur:
- Where there is suspected misconduct either through a complaint or the employer’s own observations;
- When a grievance has been lodged about bullying and harassment; or
- If an employee lodges a grievance that they have been subject to adverse action in their employment.
Employers have a responsibility to conduct a fair and equitable investigation prior to making a decision that impacts on a worker’s employment and to meet the duty to maintain a safe workplace.
The process for conducting investigations may vary from employer to employer. Depending on the size and nature of the issue being investigated, there are steps that employers should follow to ensure that an investigation is:
- Unbiased; and
- Has a just outcome.
The risk for employers in not properly investigating misconduct allegations and complaints, or not having the rights procedures in place for conducting investigations, are claims for unfair dismissal or adverse action by the employee accused of the wrongdoing. In some cases, if an employer does not properly investigate complaints about bullying or workplace safety, the employer can be found to be in breach of its duty of care to provide a safe workplace for employees.
8 key steps for a workplace investigation
1. Effective, disseminated and up-to-date policies. All employers should have clear policies about what behaviour is not acceptable to the employer, and setting out the process if allegations of misconduct are made. This preliminary step is important both for guiding managers through the proper process for conducting investigations and to clearly communicate to employees the steps that will take place following misconduct allegations. The conduct and investigation process policies will also be important for any external investigator.
2. What is the scope of the investigation? The investigation should have two clear outcomes – did the alleged conduct occur, and if so, what is the appropriate course of action or sanction to follow? The investigation should be confidential, and conducted efficiently and promptly, to limit the period of stress and uncertainty for those involved and to ensure procedural fairness.
3. Who should conduct the investigation? When an event takes place that triggers the need for an investigation, the employer needs to make a call about who should conduct the investigation. This decision is likely to be influenced by the circumstances and severity of the issue under investigation.
Depending on the circumstances of the organisation and the allegations, an employer may choose to engage an external third party to conduct workplace investigations.
The investigator and decision-makers should be appointed at the beginning of the process, and should not have been involved in or related to the alleged conduct in any way. The investigator should not be the person who makes a decision about whether the allegations have been found, and it is often the case that the decision maker about the conduct and the person who determines the appropriate sanction or course of conduct following the investigation are separate people. This ensures that the investigation is not biased and there is procedural fairness afforded to all involved. If the employer is in the public sector, it is vital that the decision makers have the proper delegation and authority to make the decisions required.
4. What are the allegations? The initial letter to the employee should clearly set out each of the factual allegations, and explain the potential consequence if each allegation is made out. For example, in the public service, this could be a breach of the Code of Conduct, and the letter should clearly set out how the alleged conduct breaches the Code.
5. Has the employee had an opportunity to respond? The employee needs to be given the opportunity to respond to the allegations, which could be in writing or in person. If the letter of allegations does not clearly set out the alleged conduct, it can be very difficult for an employee to properly respond. If needed, the employee should be able to seek clarification about the allegations prior to responding.
6. Collecting evidence. The investigator needs to identify the relevant people who can provide factual evidence about the issue, and conduct confidential interviews with those people by asking objective and clear questions. It is important that the questions do not assume that the allegations have been proved, but focus on the factual issues that will help determine if the allegations are true. All interviews should be properly documented and the interviewee sent a summary or transcript of the interview after the event. There may also be documentary or other evidence relevant to the allegations which should be carefully reviewed.
7. Investigation report. The investigator should prepare an investigation report which summarises the evidence collated, presents the facts and makes recommendations to the decision maker. A copy of the report should be provided to the employee prior to a decision made, so that the employee has a chance to respond prior to a final decision being made.
8. The decision. The decision maker should consider:
- The investigation report;
- Any response to that report from the employee;
- Any applicable employment instrument (such as an enterprise agreement) and/or employment agreement; and
- Policy documentation relevant to investigations and conduct issues. For example, if the complaint being investigated relates to bullying, the decision maker should have regard to any bullying and harassment policy which is likely to provide guidance about the appropriate consequence when bullying is found to have occurred.
The decision should be communicated to the employee both in writing and in person. It should clearly set out the basis for the decision by reference to the factual findings in the investigation report, the relevant documents and policies and why, based on those documents, the decision has been made. The decision about any consequences may be made at the same time (for example if no conduct is found, or when the sanction is not severe).
If termination of employment is the sanction, you should ensure it is conducted in accordance with relevant policies and employment agreements. It is best to have that decision made by another senior person in the organisation, as a method of ‘checks and balance’ to ensure the termination is just.
How Can Snedden Hall & Gallop assist you?
Snedden Hall & Gallop Lawyers’ employment team can provide advice to employers on workplace investigations. In addition, we can conduct the workplace investigation on your behalf. Our experienced team can also advise on your employment policies and agreements. Contact Emily and the Employment Law team on (02) 6285 8000 or by email