Home' HR Monthly : September 2017 Contents September 2017 HRM magazine 39
Workplace complaints involving alleged
bullying or harassment, a senior
member of staff, a repeat offender,
or anything serious or distressing will generally
require a workplace investigation. But many can
come unstuck due to common mistakes.
Perhaps one of the most frequent mistakes is
an employer failing to follow their own internal
investigation procedures. This may reflect an
organisation whose policies and procedures are
not well understood, or have been filed away
somewhere in the bottom drawer.
Another common mistake is failing to act
quickly to investigate, creating the perception
that inappropriate behaviour is tolerated in the
workplace and not taken seriously.
There is potential for missteps around
interviews and evidence gathering. Employers
may fail to question witnesses adequately to
gather information. They may draw conclusions
from a witness known to be unreliable, or from
information that has little substance.
In some cases, employers make the mistake of
interviewing witnesses in group settings when it
was apparent there is a conflict of interest and
they should have been interviewed separately.
What does a good investigator need?
A good investigator will have strong
report writing and interviewing skills,
patience, flexibility, perseverance, and good
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What is the failsafe way to handle workplace investigations?
BY ALISON BAKER, PARTNER AT HALL & WILCOX
need to maintain a
communication skills. They will also understand
the applicable workplace policies and procedures,
and the rules of procedural fairness.
Prior to commencing an investigation, the
organisation should provide an investigation
brief to the investigator. It should include the
allegations being investigated, any relevant
documents such as policies, emails and IT
reports. It will identify the complainant, the
respondent, any witnesses, and the chronology of
Most importantly, the investigator should not
have a predetermined view of the outcome, or a
personal relationship with any of the parties. Nor
can they be a potential witness, or investigate an
issue they may have previously advised on.
Investigators need to maintain a professional
distance with participants during interviews.
They need to remain independent and make their
findings on the evidence alone. Investigators must
recognise a conflict of interest and deal with
it -- even if it means having to step aside.
Organisations should seek external expertise
when they do not have someone internally with
these skills and qualities, or if they are somehow
compromised, or if there's potential for litigation.
Workplace investigators may be overwhelmed
by an investigation, yet courts and tribunals
understand the reality of the workplace -- they do
not expect an employer to conduct the equivalent
of a police investigation. But any investigation
must be procedurally fair. This will usually
involve clearly stated allegations (any allegation
which is vague or overly subjective will not
stand up to scrutiny; nor will anything based
on rumour, or any allegation that is too old)
and following fair and comprehensive internal
complaint handling procedures.
Tips for a procedurally fair
• The respondent knows all allegations made
against him or her
• The respondent is given a reasonable
opportunity to respond to the allegations
• Confidentiality is maintained
• The investigator is impartial
• The investigator considers all relevant
Legal advice and assistance
Legal advice and assistance provided before
an investigation commences may offer
protection via legal professional privilege:
this may limit the information about the
investigation which is available to the parties
involved in the complaint -- important if a
claim ends up in court.
Legal advice might also steer the case in
the right direction. For example, there are
workplace complaints described as bullying,
but if it's a one-off incident then a bullying
claim will not stick -- there needs to be a
pattern of unreasonable behaviour over
time to constitute bullying. If disciplinary
action is required because of the findings
of an investigation, you need to ensure
proper process has been followed and legal
obligations are met. •••
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