Thorny issues for workplace investigation processes

Kairen Harris
March 28, 2018

With apologies to Tolstoy, all investigation processes are alike, but each individual investigation is unhappy in its own particular way! There are frequently similar concerns raised by people entering this field for the first time and we have picked some of them to address today:

1. How long should an investigation take?

This is of course an unanswerable question. It depends on how many allegations are being investigated; how complex they are; the degree to which they are disputed; how many witnesses need to be interviewed, and critically, how much documentary evidence is being provided. You need to give yourself time to properly examine the relevant material and you need time to complete contradictory evidence. Typical delay issues that need to be dealt with may include:

  • dealing with medical unfitness

Obviously you cannot interview someone when they are medically incapacitated, as determined by a qualified practitioner (and in relation to the interview proposed). You may, however, have to vary the order of your process so that it can keep moving as fast as possible until the unwell individual can participate. In some cases, the absence of someone from the workplace does reduce the immediate pressure, so delay, provided everyone is kept informed, is not an insurmountable issue. In other cases, natural justice may require you to complete the investigation based on the material that is available, as the matter cannot be left hanging over the head of parties ad infinitum. Judgement as to fair delays will also need to consider the gravity of the complaint.

  • dealing with deliberate delays (interviewee ‘too busy’; elects to take short notice leave; changes dates at short notice)

The behaviour pattern of someone who is not cooperating is usually fairly easy to spot. In this case, it is important that the investigator restates that there is no requirement to participate. The individual is being offered an opportunity to do so, but they do need to take up that opportunity within a reasonable time frame. In cases of delay, you will need to evaluate the quality (and quantity) of the excuses being offered and how long a long a delay they are triggering. You are balancing fairness to both parties here. It is then critical to restate the specific end-date of the time frame available to the participant, together with what will happen if they do not participate, i.e., that the investigation will continue without the benefit of their evidence.

  • dealing with material provided late

It can occur that you finalise a report after a respondent has declined to respond to contradictory evidence, or has not done so within the agreed time frame, and then their material arrives late. It is a matter of discretion whether the material is then considered, but in general, we feel that it is prudent to consider the material unless the process has moved on to the extent that that would be unreasonable to other parties to do so (For example after people have been advised of the investigation outcomes). It is noted that many employer processes allow for the respondent to make a further response at the stage that they are advised about findings/proposed sanctions and it may be that additional salient information is considered as part of that process.

  • dealing with copious data

Some employees provide the entirety of their hard drive in the hopes that something will be relevant to the investigation or in the belief that the context of their whole work life might be. In these cases, the investigator is well advised to require the submitter to identify the specific part of any communication sent that is relevant and clearly name the allegation against which it is relevant.

  • Starting the process when you are actually ready-due diligence

It is of course possible to truncate the time period that the respondent is left worrying anxiously about the process by ensuring that you alert them to a complaint once you are completely clear what the complaint is and you have it in appropriate form to provide specific allegations. There can often be some weeks between receiving a complaint that is high on ‘felt impact’ and low on factual detail and ensuring that the facts are clear. Indeed it is usually necessary to determine that there is actually sufficient substance to proceed with an investigation and that investigation is the right tool.

Additionally employers should be wary of standing respondents down prematurely or unnecessarily. You may need to do this where there is genuine risk- to other employees or to employer property, but that is not the case in many situations. Once an employee is stood down both stress and cost add significant pressure to the timeline.

2. Is it worth compelling participation?

The short answer is that you cannot compel engagement with the process. You may be able to compel attendance at the interview, if your policy provides for the employer to direct participation.

I am in favour of employers directing participation where they can. This approach provides the investigator with the opportunity to explain to reluctant witnesses why their honesty and factual observations are so important to being able to deliver a just outcome and promoting a strong culture of accountability in their workplace. If witness are genuinely afraid of involvement, however, or parties believe that their best interest will be served in a ‘no comment/can’t recall’ response routine, ultimately the investigator can only evaluate the material that is available.

3. Reporting back post investigation

We hear frequent complaints from employees that they don’t sense that workplace issues they report then lead to action, and conversely from employers that they cannot let people know what action they have taken for reasons of confidentiality. There is also plenty of research relating to bystanders that suggests that a failure to establish confidence in organisational processes for handling issues will mitigate against employees being prepared to report future issues.

We feel that it should be possible to achieve a reasonable balance between not revealing genuinely confidential information, and, and keeping people already involved in the process reasonably informed as to what the investigation has determined and what actions therefore that the employer is intending to take. In most cases, this does involve full and prompt disclosure to the complainant and respondent as to investigation findings and proposed actions. Usually organisations will provide the bottom line of the finding rather than all the determinations leading up to it, as they want parties to focus attention on next steps, not on re-analysing the determinations made. The contradictory evidence phase will in any event have ensured that both parties are reasonably clear about what data the investigator is considering. If parties need to remain in a working relationship, then it is critical to implement a supported process for them to determine the ground rules of working together going forward. This is often done badly, or not at all, and the parties have no idea how to recalibrate their relationship after the investigation. (For more detailed examination and our research on post investigation steps generally, please see our blog post After an Investigation.)

As far as impacted teams or witnesses are concerned, they will necessarily get far less specific information. It can be helpful, however, to advise witnesses that their cooperation with the investigation has been appreciated and that this does assist the employer to uphold the workplace Code of Conduct; that the investigation has now been concluded and that the organisation is acting on the findings. As has been done quite successfully with OHS,however, it can be appropriate to draw out generic organisation learning’s from matters that have arisen, without ‘naming names’.

Where entire teams have been rent asunder by conflict within, and where an investigation does not result in any player leaving the team, it is absolutely necessary to reset behaviour expectations going forward and do some active work in rebuilding trust and relationships.

If you want to hone your investigation skills and discuss tricky aspects of work place investigations, consider Worklogic’s 1 day workplace investigation training and/or buy the recently released second edition of the Worklogic Workplace Investigations book.

About Kairen Harris

Kairen HarrisKairen Harris is an Associate Director at Worklogic, She brings an impressive set of HR skills and experience to Worklogic, obtained from an extensive, international HR career.  Prior to joining Worklogic, Kairen was HR General Manager for Shell in Australia, New Zealand and the Pacific islands, responsible for delivering the workplace policies, processes and culture that would best promote values of gender equity, inclusion and respect for people.

For a free, confidential discussion on conducting a workplace investigation, please contact Kairen via email or give her a call on (03) 9981 6500.

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