May 02

Procedural Fairness and Interviewing

Over the last few months, I have had the opportunity to speak to various HR membership groups about workplace investigations, and, in particular, how to maintain procedural fairness. One of the questions I am frequently asked is: “In what order should I interview the participants, and why?

Procedural Fairness Recap

At Worklogic, we take into consideration a number of factors are when assessing whether an investigation process has been procedurally fair, specifically the importance of:

  • timeliness
  • confidentiality
  • providing reasonable opportunity to respond and/or be heard
  • delivering an unbiased assessment of the evidence.

Interviewing Order

Interviewing of participants is one of the most important parts of the investigation and I have heard much debate recently about the most appropriate order in which to interview the complainant, the respondent and witnesses.

Particularly bearing in mind the timeliness and confidentiality elements of procedural fairness, at Worklogic, we recommend that that participants should be interviewed as a matter of usual practice in the following order:

1. complainant

2. respondent

3. witnesses.

Why this is a better approach

Here are the key reasons for why:

  • A workplace investigation is not a police investigation, where the complainant is interviewed, then the witnesses, followed by the respondent. Our aim is not to build a case to prosecute or to somehow “catch out” anyone. The purpose of the workplace investigation is to examine the evidence relating to the complaint which has been made, as quickly and thoroughly as possible, and make a finding, so that it can be resolved and, if relevant, the appropriate management action is taken.
  • By interviewing the respondent after the complainant, we give ourselves the opportunity to expedite the process by only investigating those elements of the allegation which are not agreed to by the respondent. While a respondent may not agree to all of the behaviours alleged, they may agree to some parts. This means that, on the balance of probabilities, it may not be necessary to then organise and involve unnecessary and irrelevant witnesses in the investigation.
  • Interviewing witnesses after the complainant, but before the respondent, may delay the process unnecessarily. It requires employees to be made aware that an investigation is occurring – before an assessment of their relevance and value to the investigation as witnesses can actually be made. This has the potential to impact confidentiality and workplace relationships in the long term.  Also, do not forget, the respondent is entitled to identify their own witnesses, and they may be different to those identified by the complainant. This may also lead to further delays.
  • Some say that by interviewing the witnesses after the complainant, an assessment can be made about whether the complaint is actually valid. In our view, this is a premature approach and is open to being perceived as unsupportive, suspicious and biased. The investigation process will assist in making that assessment once all the facts have been collected and considered.
  • Finally, you need to be situationally aware of the post-investigation working environment. An investigation can be damaging to relationships and involving employees unnecessarily will only compound this potential issue.

Other factors impacting interview order

There will be some occasions where it might be necessary to interview a limited number of witnesses before the respondent, for example:

  • In a fraud investigation, it might be necessary to interview the accounts staff to obtain physical evidence (receipts etc) relevant to the misuse of a credit card.
  • If a respondent is not available for some time, an investigator may choose to minimise delays by interviewing witnesses in the meantime to ensure a timely process.

In general, however, it is better practice and removes any perception of bias to put a complaint to the respondent as quickly as possible, take their response and then assess who else needs to be interviewed to assist you in order to make a finding of fact.

About Jason Clark

Jason ClarkJason Clark is Worklogic’s Associate Director, based in Sydney. Jason has extensive experience as a workplace investigator, investigating a range of issues including fraud, bullying, harassment and sexual misconduct. He has also assisted numerous organisations develop strategies to minimise poor behaviour and encourage a positive workplace culture.

Prior to joining Worklogic, Jason was the Joint Investigation Office Commander for the Australian Defence Force Investigative Service. Acting as mentor and leader, Jason managed a team of investigators in a dynamic environment, handling complex cases. For more advice, please email Jason or give him a call (02) 9152 8706.