Crucial 4 steps of a workplace investigation

If you employ people, there is a chance you will receive a workplace complaint at some stage.

When dealing with a complaint, it is important that you take all reasonable steps to ensure any workplace investigation is carried out appropriately.

Failing to do so can give rise to various claims including unfair dismissals, general protections or stop bullying applications.

All investigations will be unique and this article is not intended to be an exhaustive guide, however, there are some essential steps that will help you to implement a procedurally fair process.

Step 1: Plan and prepare

From my experience, the preliminary steps of an investigation are often the most crucial, which is why it is good to prepare a checklist and ensure you follow it to comply with procedural fairness. 

As part of the planning stage there are some important items that should be ticked off your checklist, these include:

  • Review of workplace policies and procedures

Reviewing all relevant workplace policies and procedures may provide guidance on how a complaint is to be made and what process you should follow to investigate that complaint. They may advise on things like whether an informal or formal investigation should be carried out and will also provide consistency across investigations.

  • Clarify the allegations

It is essential to understand exactly what the issues are, as you will need to extract the specific allegations to put to the respondent.

Often an initial complaint can be quite broad, and if the allegations are too vague it will be almost impossible to determine whether they can be proven or not, which will likely result in an investigation that yields no outcome, despite the fact some misconduct may have occurred.

Your best opportunity to confirm the details of the allegations is at the very beginning, so ensure you appropriately determine the scope of the investigation is at the outset.

  • Determine the appropriate investigator

You will also need to consider who is the most appropriate person to investigate the complaint.

It is important for the investigator to be impartial and objective, in addition to having the necessary experience to conduct an investigation.

If, for example, the complaint is against your CEO or HR team, it may be more appropriate to have a third party conduct the investigation, such as a solicitor or other suitably qualified person.  

  • Consider health and safety of the parties

Does the presence of any personnel present a risk to health or safety or would otherwise jeopardise the investigation? In some circumstances, you may need to take steps such as altering reporting lines at least until the investigation has been completed.

  • Provide the allegations to the respondent

It is an essential requirement of procedural fairness that the respondent is aware of the allegations and they have been put to them in a manner that is capable of being responded to.

It is best practice and certainly my preference to prepare a letter of allegation, which clearly articulates the allegations and provides specific examples of the conduct the complainant considers unreasonable.

It is also a good time to outline the obligations of confidentiality and victimisation to ensure integrity is upheld in the process.

Step 2: Gather evidence and investigate

Gathering all the relevant documentation and carefully analyse the non-witness evidence. This may include reviewing emails, text messages, meeting notes or obtaining CCTV footage and will help identify most of the relevant witnesses from the outset.

When notifying witnesses, I recommend issuing letters which clarify that the allegations are not against them to avoid any unnecessary concern and also remind them that the matter is strictly confidential.

Carefully plan for each of the interviews, prepare your questions in advance and ensure you have thought about what witnesses will need to provide information to substantiate any allegations. 

You will also need to consider whether witness statements are required by your policy and procedures or if the allegations are of such a nature that it may be necessary to have signed witness statements.

When you interview the parties, make sure that any new information is considered when going forward and, in particular, make sure you listen to and consider any explanations or possible mitigating factors provided by the respondent.

Step 3:  Review and make findings

The findings should be made on established facts, not circumstantial evidence. Unless the workplace policies and procedures provide otherwise, the standard of proof is on the balance of probabilities.

However, where the allegations against an employee is serious, it may be necessary to apply what is called the ‘Briginshaw Principle’. The crux of this principle is that where allegations are of a more serious nature, there must be stronger evidence to support the more serious allegations to be substantiated, particularly where it is likely to lead to the termination of employment. This is where witness statements will be necessary.   

Step 4: Report and resolve

The final stage involves providing a copy of the investigation report to the ultimate decision-maker.

The investigation report should include a chronology of events, detail the evidence relied upon, including any witness evidence and how credible and compelling that witness’ evidence was, and summarise the findings along with any recommendations.

Ryan Martin is the Manager of CCIWA’s Workplace Relations team.