Procedural requirements for investigations
There are various factors to consider when managing or preparing to manage a workplace investigation. We have outlined some simple steps below which can be used as a starting point, but please note this list is not exhaustive, nor should it be interpreted as legal advice.
- Identify the issue and make a plan for the entire process, such as key individuals (both of whom will be interviewed and whom will conduct the investigation), key evidence, timeframes and how the findings of the investigation will be recorded and later presented.
- Have clear written allegations, an outline of the process that will be followed, anticipated timeframes, and other support that an affected individual will have access to.
- Communicate with parties involved and take detailed notes of when, where and what was said and discussed.
- Consider all of the evidence and prepare findings. You can always speak to parties again if certain aspects are unclear or there are gaps in understanding responses.
- Present findings to the parties involved and provide them with a reasonable amount of time to respond.
- Consider further responses and then present parties involved with final findings and outcomes.
At times, especially in smaller workplaces, there might not be sufficient resources to manage the investigation process. Additionally, the conduct and issue that requires investigation may call for a greater degree of independence to avoid and mitigate any risks relating to impartiality and claims of procedural unfairness. This is why it can be beneficial to seek external support from legal advisors or workplace investigators who can assist employers through this process.
Things to avoid with workplace investigations
At times, things don’t always go to plan. When they don’t, there’s still a good chance of rectifying them, but the key is to identify any shortfalls early and be transparent about resolving the issues identified.
Don’t:
- Go rogue. If there are workplace policies and procedures that outline grievance or disciplinary procedures, follow them. If for some reason they cannot be followed, such as the process outlined didn’t take into account a key issue, inform the parties involved for the reason of deviating from such processes and procedures.
- Be vague. All parties involved need to understand what the concern is, what the conduct of concern is, and how these concerns are linked or related to expected behaviours or conduct.
- Provide limited information. Give as much detail as possible; this will ensure a smooth process with limited-to-no delays in receiving responses.
- Give someone 24 hours to respond to findings. Going through an investigation where someone is feeling like their job is at risk will be nerve-wracking and stressful. Employers should be compassionate and consider how the situation at hand might be impacting them personally. Mental health is important, and employers should offer and provide support where possible.
- Ignore the human element. If there are extensive and numerous allegations, give the individual a reasonable amount of time to respond to the allegations and, also, to respond to the findings.
- Unreasonably refuse an individual to attend as a support person. This can be tricky because it may appear to be a delaying tactic on the part of the individual, but an unreasonable refusal to allow a support person may render a disciplinary outcome that leads to termination of employment, an unfair dismissal.
- Threaten individuals with disciplinary action or indicate a potential outcome before you have considered all the evidence and interviewed all parties involved.
- Be afraid to ask for help. Seek advice from professionals such as legal advisors or specific workplace investigators.
Sonia Chandra is a partner at Danny King Legal in Sydney.
