Effective investigations are essential to ensure a fair, reasonable and just procedure is carried out when complaints such as bullying, harassment or misconduct are made against employees in the workplace.
When a complaint is made against an employee, it is critical that employers investigate the complaint in a thorough, unbiased manner. The nature of a complaint can vary from accusations of bullying or sexual harassment, to exposure of employee theft or fraud. In any case, a fair process must be followed to ensure the accused employee is afforded a “fair go”, a critical component in defending any subsequent unfair dismissal claims.
In addition, a fair investigation will reduce the company liability for claims brought against the employer. An employer, including HR professionals, can be held vicariously liable for the discrimination and harassment carried on by one of their employees in the workplace against another employee This is unless it can be shown that ‘reasonable steps’ have been taken to protect the employee concerned. Importantly, an employer must ensure that all complaints are treated seriously and investigated both promptly and fairly in accordance with company policies and procedures.
Many businesses will have a dedicated HR professional to manage workplace investigations, however it is important for management to be confident with the steps that need to be followed when investigating a complaint as they may need to manage the situation in the absence of a HR professional. Industrial tribunals will consider how much of an impact the presence, or absence, of a dedicated HR professional would have played in a fair outcome, particularly if the investigation has the potential to result in disciplinary action such as termination.
It is advisable that employers have a clear policy and procedure on workplace investigations. Below is an example of what could be included in a policy and procedure on how to conduct a workplace investigation.
Take a statement
Take the complainant’s statement as soon as possible while the incident remains clear in their mind. The statement should include information such as dates and times, the sequence of events, and witnesses that were present. The statement should then be signed by the complainant as a true and accurate reflection of the events.
The employer must then interview the subject of the complaint.
- The person should be offered the opportunity to have a support person present during the interview. This person is to provide emotional support to the person, they are not to respond on the employee’s behalf or disrupt the proceedings.
- The company should also have a witness present. The witness could take minutes of the meeting and can corroborate what was said during the meeting should the need arise later.
- When the interview is conducted, ground rules should be established, and all present must be made aware the interview is strictly confidential.
- The person must be afforded natural justice and procedural fairness during the investigation process. The person must be made aware of who is making the complaint, the nature of the complaint, and given an opportunity to respond to the allegations. Their statement must be taken and their version of the situation investigated, such as approaching witnesses etc.
- If the company believes the situation to be serious they should suspend the employee on full pay while they conduct the investigation. This may be an effective option if the complaint involves workplace bullying, as witnesses may be hesitant to come forward while the person is still at work.
Investigate the incident
The investigation entails interviewing and taking statements from all witnesses and obtaining any corroborating or contradictory information. The employer must interview witnesses separately, so that they do not influence each others recollection of events. It is important to remind employees of the need to keep sensitive issues confidential. As with the complainant’s statement, ensure that any information obtained includes specific first hand accounts including dates, times and actual observations.
Both the complainant’s and the respondent’s statements must be investigated to ensure a fair procedure.
Assess the results of the investigation
Once all the information has been obtained the company needs to assess whether there is sufficient concrete evidence to support the claim. A meeting must be held with the accused to present them with the evidence. There is no need to give the employees copies of the written statements, but they should be informed as to their content. In the event of substantive evidence being discovered, the accused must be given an opportunity to respond. Subsequent to this, a decision needs to be made about the level of disciplinary action (up to and including termination) commensurate with the behaviours.
The level of disciplinary action varies depending on the issue at hand and company policy.
In the case where there is no evidence to support the claim, the employee against which the allegations were made must be informed. In addition, the company may need to implement some measures to remind their employees that conduct such as bullying is not tolerated in the workplace. These measures could include:
- implementing or re-issuing the company policy on discrimination, harassment and bullying to all employees so they are aware of what is not acceptable conduct
- conducting training on identifying discrimination, harassment and bullying
- establishing (or reviewing) complaint handling procedures to ensure they are fair and timely
- monitoring the workplace environment and culture.
Investigations are more important than ever…
The general protection provisions under the Fair Work Act 2009 (Cth) open up more avenues for employees to pursue claims of discrimination. It is therefore very important that when conducting investigations employers: