What is a workplace investigation and when does your workplace need one?

First things first… What is a workplace investigation?

A workplace investigation is an investigation into an allegation of misconduct, often triggered by a complaint about bullying, harassment, discrimination, safety issues, fraud or other unethical behaviour at work. Investigations can take many forms, some more formal than others, an may include the collection of evidence including wages, time-slips, employment contracts, other relevant documents and witness interviews depending on who or what is being investigated. This evidence is then examined and evaluated, so decisions can be made as to the most appropriate outcome or finding.

Often workplace investigations are triggered

When does my workplace need one?

It may be appropriate to conduct an investigation if there is a complaint or allegation that raises reasonable concerns about an employee’s conduct or performance when carrying out their employment duties. The allegation could be made internally or externally; and importantly, could be or become a legal claim against your business.

Examples of when an investigation may be required are where an employee alleges that they were bullied by their manager, or that another employee made sexually suggestive comments about them.

Ensure your workplace investigation procedure is up to standard, and does not leave your business at risk of further dispute…

It is worthwhile having an investigation plan or procedure ready to go in case a situation arises where a workplace investigation does become necessary. That way the investigation can be carried out expediently and fairly in order to:

  • Ensure that the investigation process itself is not more damaging than the conduct alleged;
  • Secure documented evidence before it goes missing/becomes unavailable;
  • Increase the chances that witnesses to the incident are both contactable with reliable recollections; and to
  • Show that misconduct will not be tolerated and stop any bad behaviour from continuing.

Some simple things to be aware of as a business owner:

As an employer, you have broad discretion to take reasonable management action to require an employee to answer questions relating to any allegations made against them, and/or talk to them about any concerns you may have about their conduct or performance.

That said, your workplace should have established policies with a checklist for HR, managers or supervisors so that the proper process is followed, so that any employee discipline or dismissal does not expose your business to legal action.

In some ways, the way that the investigation is conducted and the people involved are as important as the issue being investigated. If an investigation is not conducted in a fair and impartial way, it could inflame an already serious situation and cause further disruption to your workplace. There are cases where employees have been awarded compensation for having been subjected to unfair investigation processes, even in circumstances where their termination by the employer would have actually been valid.

It should be clearly documented at the beginning of a workplace investigation exactly:

  • The purpose of the investigation;
  • Who will investigate;
  • What will be investigated;
  • What evidence is necessary; and
  • Who will be interviewed.

Practices relating to workplace investigations – your inquiry must…

  • Be carried out in a confidential manner and ensuring all employees aware of or party to the investigation understand they are not to speak about it with one another;
    Ensure the person carrying out the investigation is impartial without any pre-conceived ideas about what happened. It may be appropriate to appoint an external investigator with no relationship to any party;
  • Put any concerns or allegations against an employee in writing to them first before beginning the inquiry, and explain the consequence of each allegation before requiring them to respond;
  • Allow employees sufficient time to consider the allegations before interviewing them;
  • Offer the employee being questioned the option of bringing a friend or support person to their interview (this may be a union representative however any kind of advocate will not be allowed); and
  • Re-interview the employee and any other necessary witnesses if further allegations or evidence comes to light (this should be done without expanding the investigation beyond the original issue).

When coming to a conclusion and determining action following a workplace investigation, ensure:

  • Facts and statements relied upon are consistent;
  • The responses of the employee being investigated have properly been taken into account;
  • The evidence confirms it is more likely than not that the incident in question occurred (or did not occur); and
  • Any serious disciplinary action (such as dismissal) is only taken when there has been a significant misdemeanour, substantiated by reliable evidence.

If you would like to speak to a legal professional about a workplace incident either as an employee or employer, give Sinclair + May a quick call. We would be happy to assist and protect your legal interests at any stage if you have questions before, during or following an investigation.

This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation. 

Published Jul 9, 2018

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